There is no legal requirement to instruct a Solicitor to act on your behalf in respect of Divorce proceedings.

However, for reasons set out below, particularly in respect of the finances of a marriage, it is important that legal advice is sought as early as possible which is tailored to your own personal circumstances to ensure you are clear in respect of your rights and legal duties.

Can I get a divorce online?
In recent years the Court has launched an online portal that enables parties to deal with their own Divorce proceedings online. This has made it far easier, and indeed quicker, for the Divorce proceedings to progress. It is therefore now far more straightforward to issue your own Divorce proceedings through the Court service website, without the assistance of a Solicitor.

The New No Fault Divorce Law (April 2022)
The Court’s streamlined online process works for many and particularly with the imminent ‘no fault’ Divorce coming into force in April 2022, it is expected that the process will likely be even more accessible to those not wishing to instruct a Solicitor in respect of the divorce element of formalising their separation.

Pros of a solicitor with a No Fault Divorce
It is however important to keep in mind that a Solicitor who is experienced in the Divorce process will be able to deal with matters far more efficiently and quickly than one who is completing the process for the first time and during a time where they are dealing with the emotional impact of a separation.

At Mayo Wynne Baxter, we always encourage clients to look into the Court portal and Divorce process themselves in the first instance when deciding whether they feel they require assistance from a Solicitor to deal with matters on their behalf.

What the new law means for separating spouses
The new ‘no fault’ Divorce law which is due to be implemented in April 2022 will provide a complete overhaul of the current system for obtaining a Divorce; however, it will not affect the finances of a marriage/civil partnership. It will therefore remain just as important to obtain advice in respect of your rights and legal obligations concerning the finances of the marriage.

Protecting your Finances
Whilst the Divorce process is straightforward and can be undertaken by parties acting ‘in person’, simply obtaining your Decree Absolute (soon to be known as a ‘Final Order’) to formally dissolve your marriage or civil partnership will not deal with the dismissal of your legal obligations to one another. It is therefore imperative that alongside any Divorce proceedings, whether it be now, or following the new law being implemented in April 2022, that the finances of the marriage are dealt with formally by way of a Consent Order, or Financial Remedy Order, to ensure that your respective financial claims against one another are formally reviewed and dismissed, if appropriate.

What is a Consent Order/Financial Remedy Order?
A Consent Order/Financial Remedy Order is a document that requires careful consideration and needs to be carefully drafted in order to be tailored to your specific circumstances and ensure it meets with your understanding of any agreements reached. The Court’s online portal cannot assist with the drafting of such a document, and it is important that the Consent order is tailored to your specific circumstances. Where one has a limited budget, it is important to consider focussing that budget on obtaining advice in respect of your potential legal rights, and the drafting of a Consent Order.

Pros of a solicitor when obtaining Consent Order/Financial Remedy Order
It is always important to obtain legal advice in respect of the division of the finances of the marriage as there is no substitute for legal advice that is tailored to your own personal situation; an agreement appropriate in one set of circumstances will not be so for another.

Further, in England and Wales, we have a discretionary system, there is no prescriptive formula that can be used to determine the division of the financials of the marriage. A solicitor will provide advice which is tailored to your own personal circumstances and based upon their experience, taking into account precedents which have been set by recent cases and legislation. It is, therefore, useful to obtain legal advice at an early stage when considering the division of the finances, to ensure that you have a realistic understanding in respect of how your finances may be resolved.

Achieving an agreement with Mediation
Following the obtaining of initial advice many clients then choose to attend mediation with their spouse, in order to assist with negotiations. It can therefore be useful to have a Solicitor in the background to provide advice when required.

Once an agreement is reached it is important that a Solicitor drafts this on behalf of one party to ensure that it is drafted correctly and dismisses your respective claims where appropriate. Where the Consent Order has been drafted by your spouse or civil partner’s Solicitor it is important to obtain legal advice in respect of the content of that Order, to ensure that the Order reflects the agreements as you understand them to be.

At Mayo Wynne Baxter we have specialist Family Solicitors who will provide tailored advice based upon your requirements, whether it be an initial consultation with ad hoc advice whilst you are attempting mediation, or to assist you with undertaking negotiations directly with your spouse or civil partner.

To find out more about the services we can offer, please do contact our experienced Family team at Mayo Wynne Baxter by telephone on 0800 84 94 101.

The distinction between a Primary and Secondary Victim
What is a primary victim?
A primary victim is someone who has been directly involved in an accident and who suffers an injury (or is at risk of suffering an injury).

What is a secondary victim?
A secondary victim is someone who has suffered a psychiatric injury as a result of witnessing the negligence caused to the primary victim but has not been directly involved.

The legal test for secondary victim claim
The lead case on secondary victim claims is Alcock v Chief Constable of South Yorkshire Police [1992] which sets out a 4-stage test known as the control mechanisms. For a secondary victim to be successful in their claim, they must prove the following:

It must be reasonably foreseeable that a person of “normal fortitude” might suffer psychiatric injury by shock. There must be a recognised psychiatric injury suffered.
There must be a close relationship of love and affection between the primary victim and the secondary victim.
The psychiatric injury must be caused by and result from a sudden and unexpected shock. It must be caused by seeing or hearing the relevant incident or its aftermath.
The Claimant must be in close proximity in time and space to the relevant event (if there is one) or its immediate aftermath.
Paul v The Royal Wolverhampton NHS Trust and others
On 13 January 2022, the Court of Appeal handed down its judgment in the case of Paul v The Royal Wolverhampton NHS Trust and others, which was heard alongside another two secondary victim cases with similar facts, Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed.

In the case of Paul v The Royal Wolverhampton NHS Trust and others, The primary victim died of a heart attack in January 2014 when out shopping with his daughters. It was the Claimant’s case that the Defendant failed to perform a coronary angiography in November 2012. Had this been done, it would have revealed coronary artery disease and the primary victim could have been successfully treated by coronary revascularisation.

The primary victim’s daughters brought secondary victim claims as they both suffered psychiatric injuries as a result of witnessing their father’s traumatic death.

The secondary victims had no issue proving the first 3 of the 4 criteria above, as set out in Alcock v Chief Constable of South Yorkshire Police [1992] but had difficulty proving “proximity”, as they did not witness the lack of treatment provided to their father in 2012.

The Defendant’s position
The Defendant relied on the caselaw of Taylor v Somerset Health Authority [1993]. This was a clinical negligence claim whereby the Defendant failed to diagnose the Claimant’s worsening heart condition, which resulted in him suffering a heart attack months later and dying. His widow attended the hospital within an hour of her husband dying and was told of her husband’s death by a doctor about 20 minutes later.

In this case, it was held that the progressively deteriorating heart condition, the death, and then the transfer to hospital where the Claimant’s widow was informed of what had happened, did not meet the “proximity” criteria. This was further validated in Taylor v A Novo (UK) Ltd [2013] where the Claimant’s argument that the event to which the proximity test applies is the consequence of the negligence i.e., the husband’s death, was rejected. Proximity also requires proximity to the event i.e., the failure to diagnose her husband’s heart condition.

The Claimant’s position
The Claimant relied on the case of North Glamorgan NHS Trust v Walters [2002] whereby there was a negligent failure by the Defendant to treat a baby’s acute hepatitis. Around 17 June 1996, the baby was admitted to hospital and incorrectly diagnosed with jaundice. On 30 July 1996, the baby had a seizure which was witnessed by the mother. A misdiagnosis then delayed treatment for the baby’s brain damage and due to its severity, life support was terminated. The Court of Appeal held in this case that “there was an inexorable progression from one moment when the fit causing the brain damage occurred as a result of the failure of the hospital to properly diagnose and treat the baby, [to] the dreadful climax when the child died in her [the mother’s] arms. It is a seamless tale.” This was regarded as a single horrifying event.

Outcome in Paul v The Royal Wolverhampton NHS Trust and others
The Court of Appeal held that they could not distinguish the facts of Paul v The Royal Wolverhampton NHS Trust and others, with that of Taylor v Somerset, which was approved by the Court of Appeal in Taylor v Novo.

The death of the secondary victims’ father was 14.5 months after the negligent incident, was separated in space and time and could not be said to be a relevant event for deciding proximity. It was held that no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or first horrific event and therefore the claim failed.

The Master of the Rolls, Sir Geoffrey Vos commented that whilst “there was no logical reason for these rules” i.e., why the proximity in clinical negligence cases must be in relation to the initial cause of action, “it is for the Supreme Court to decide whether to depart from the law” and the Court of Appeal were simply bound by the precedent in Taylor v Novo.

The cases of Polmear v Royal Cornwall Hospital NHS Trust and Purchase v Ahmed also failed on the basis that they too failed to meet the proximity criteria. Whilst there was an indication by the Court of Appeal that an appeal in Purchase v Ahmed would not be allowed, the distinction being that the secondary victim found her daughter moments after she had died rather than witnessing the collapse and death first-hand, all cases have now received permission to appeal to the Supreme Court.

It is therefore a victory for Defendants and any subsequent secondary victim claims will now be bound by this decision. However, based on Vos’s comments, it seems this decision may be short-lived, but it will be for the Supreme Court to determine whether claims by secondary victims in failure to diagnose cases will be allowed in the future. It is hoped that the appeals will be heard by the Supreme Court at the end of 2022/early 2023.

If you would like advice on the matters discussed in this article, please contact our team on 0800 84 94 101

The new ambulance standards

In 2017, following the largest clinical ambulance trials in the world, NHS England implemented new ambulance standards across the country. According to NHS England, this was to ensure “the sickest patients get the fastest response and that all patients get the right response first time.”

Ambulance services are measured by the time it takes from receiving a 999 call to a vehicle arriving at the patient’s location. Under the new system, all calls are triaged into four categories according to the patient’s condition, which are detailed below. The ‘clock’ only stops when the most appropriate response arrives on scene, rather than the first.

Are the new standards being met?
Category 1 – Life-threatening injuries and illnesses
Category 1 calls include immediately life-threatening injuries and illnesses, for example, cardiac arrest, respiratory arrest and airway obstruction. The targeted response time for this category of call is 7 minutes on average and 90% of category 1 calls should be responded to within 15 minutes.

According to NHS England Ambulance Quality Indicators, following the implementation of the new standards, between April 2018 and March 2020, the average response time for category 1 calls fluctuated between a high of 8 minutes 7 seconds and a low of 6 minutes 31 seconds.

In May 2021, the average response time was 7 minutes 25 seconds, this was alongside an increase in the number of Category 1 incidents, whereby 67,982 were recorded. This is 50% higher than in May 2020 (when the number fell during the coronavirus pandemic) and 17% higher than in May 2019. The 90th centile target was, however, consistently met.

But by October 2021, the average response time for category 1 calls increased to 9 minutes 20 seconds and the 90th centile was 16 minutes 23 seconds. Neither the 7-minute average nor the 90th centile standards were met.

Category 2 – Serious conditions like Strokes and Chest pain
Category 2 calls include emergencies such as strokes and chest pain. The targeted response time for this category is 18 minutes on average and 90% of category 2 calls should be responded to within 40 minutes.

Between April 2018 to March 2020, both the average and 90th centile response time targets for category 2 calls were never met.

The 90th centile target was first met in April 2020 and the average target was first met in May 2020, when the average response time fell to 13 minutes 29 seconds. This came alongside a fall in the number of Category 2 incidents following the onset of the Covid-19 pandemic.

Since then, the number of Category 2 incidents has increased and in October 2021 the average response time was 53 minutes 54 seconds, and the 90th centile was 1 hour 56 minutes, which is significantly worse than the average targets set of 18 and 40 minutes!

Category 3 – Urgent calls
Category 3 is for urgent calls such as uncomplicated diabetic issues and these calls should be responded to within 2 hours, 90% of the time.

The average response time for Category 3 calls has fluctuated since the new standards were implemented.

Following the onset of the Covid-19 pandemic, response times fluctuated considerably. Between April and July 2020, Category 3 response times improved dramatically, with the fastest average response time of 29 minutes in May. This may be due to additional staff being brought in from other services and reduced traffic during the national lockdown.

Since then, response times have worsened overall and in October 2021, the average response time was just under 3 hours and 10 minutes. The 90th centile was just over 7 hours and 47 minutes, so the two-hour standard was not met.

Category 4 – Stable clinical conditions
Category 4 is for less urgent issues such as stable clinical conditions. These patients may sometimes be advised over the phone or referred to a GP or pharmacist. 90% of these types of calls should be responded to within 3 hours.

According to NHS Ambulance Quality Indicator Data, information relating to the response time for category 4 calls isn’t available for North West Ambulance Service after May 2021.

The remaining data however shows that an average response for category 4 calls in October 2021 was 3 hours 37 minutes and 90% of calls were responded to within just over 8 hours and 1 minute, the worst performance since the dataset began.

The data, therefore, suggest that the NHS is under increased levels of pressure and subsequently, ambulance response times are taking longer as the months progress, putting patients’ lives at risk

What is the cause of the ambulance delays?
The pandemic
Ambulance leaders have described the highest level of emergency activity in history this year. It is thought that the pandemic and the disruption it has caused to health care and everyday life, has meant the health of frail and vulnerable people has deteriorated, leading to more demand on services.

Hospital handovers
There are also concerns about the time lost to hospital handover delays. It is thought that these delays are partly due to the need to maintain social distancing in emergency departments, alongside the unprecedented pressures in the whole urgent and emergency care system due to the pandemic.

Lack of social care for patients who have been discharged
Hospitals report having problems discharging patients who are medically fit to leave but cannot because there is no social care available to support them in the community. This causes significant delays in admitting patients onto wards which can lead to long waits for ambulance crews arriving with patients.

Lack of investment
An overall failure to invest in the NHS and more specifically the ambulance workforce is also likely to be a significant cause for the delays, which includes the failure to recruit new paramedics, call handlers, and support staff.

What does this mean for the patients of NHS England?
Where there are delays in an ambulance arriving or in paramedics ensuring the right treatment is given, the effects on a patient’s health can be devastating, with lifelong consequences for them and their loved ones.

For example, if someone is in cardiac arrest, for every minute that they do not receive CPR and have a defibrillator used on them, their chance of survival decreases by 10%. Whilst CPR can be provided by a bystander, often defibrillators are not available until an ambulance arrives. Rapid ambulance response times are therefore lifesaving.

Another example would be a person who has suffered a stroke. They may require so-called “clot-busting drugs” to minimise the effects of the stroke. Evidence suggests that if this drug is not administered within 4.5 hours of the first symptoms of a stroke being identified, they are unlikely to be effective. Furthermore, the earlier the drug is administered, the less debilitating the effects of the stroke will be. Therefore, the urgency of getting an ambulance to the patient, diagnosing and getting them to a hospital where the “clot-busting drug” can be administered, is of paramount importance and will make a huge difference to the patient’s recovery and future.

Bringing a claim for clinical negligence due to ambulance delay
Where an ambulance service has accepted a call-out and dispatched an ambulance to the scene of an incident, a duty of care is owed to that patient. If they suffer an injury or die as a result of an unreasonable delay in responding, they may be liable to pay compensation. They will also be liable if negligent medical care or treatment is provided by the paramedics who attend.

If you feel that you might have a claim for medical negligence due to delays in receiving ambulance treatment, the negligent treatment provided, or for any other reason, please contact our team and we will be pleased to help.

What is contentious probate?
Contentious probate is an umbrella term that generally covers any dispute involving the estate of someone who has died. “Probate” refers to the proving of a Will, which can be disputed or contended.

There are several ways disputes over an estate can arise, and Mayo Wynne Baxter are on hand to help deal with any contentious probate.

Common Reasons For Will Disputes:
Common matters dealt with by contentious probate lawyers are disputes over the validity of a Will. Grounds for contesting a Will are:

Lack of mental capacity. The definition of mental capacity that applies to Wills is that a person must be able to:
Understand the nature of making a Will and its effects.
Understand the extent of the property of which they are disposing.
Comprehend and appreciate the claims they give effect to.
Must not be affected by any disorder of the mind or insane delusion.
Determining capacity is not always straight forward. For example, if someone is living with a memory impairment such as dementia it may indicate that they do not have capacity however, such a diagnosis does not automatically mean that they do not have the level of mental capacity required by law to make a Will. These claims tend to rely on witness and medical evidence to determine whether the Deceased had the necessary mental capacity at the time of making the Will.

Undue influence. In this context it generally means someone is being accused of ‘poisoning the mind’ of the Deceased against another family member. This claim has a high threshold of proof, and it will usually depend on the individual facts whether or not a claim is likely to succeed.
Lack of knowledge and approval of the contents of the Will / their assets and
Fraud
If a Will is found to be invalid due to any of the above, the last validly executed Will will be followed instead. Or, if there is no Will the intestacy rules will apply. The intestacy rules set out which family members will inherit the estate if no valid Will is left i.e., if you have a husband, wife, or civil partner they will inherit first.

This is a complex area of law; it is important to take legal advice as early as possible. Consider reaching out to one of our expert contentious probate solicitors: get in touch and we can answer your questions and show you how we can help.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”).
The Inheritance Act allows for certain categories of people to make a claim against an estate if they feel they have not been left reasonable financial provision by the Deceased i.e. they are struggling financially and they feel they should have been left more.

Who can make a claim under the Inheritance Act?
The categories of people who can potentially bring a claim are:

Spouse or civil partner of the Deceased;
Former spouse or civil partner of the Deceased (as long as they have not remarried);
A person living with the Deceased for 2 years prior to death as if they were a spouse or civil partner;
A child of the Deceased;
A person who was treated as a child by the Deceased and
Anyone who was being maintained by the Deceased at the time of their death.
It is important to take legal advice early if you think you may have such a claim as there is a strict deadline for issuing Inheritance Act claims at Court.

Disputes with Executors / Administrators:
Executors are appointed by the Deceased under a Will to administer their estate. They can appoint either lay people or professionals such as Solicitors.

An Administrator does the same role as an Executor but under a different name; Administrators are appointed when there isn’t a Will.

Whether acting as Executor or Administrator there are a number of duties that need to be complied with when dealing with an estate.

Common issues that arise during an estate administration are:

Executors or Administrators not getting on and not agreeing on how best to administer the estate. We can assist with negotiating between parties and ensuring Executors / Administrators are complying with their obligations and duties.
Beneficiaries can become frustrated with Executors, and they may not always be aware of what information they are entitled to or what action can be taken against Executors who are not complying with their duties.
The terms of the Will may not be clear, and the Executors / Administrators may need help with interpretation.
We have experience acting for both Executors and Beneficiaries.

Do contentious probate lawyers only advise on Estate disputes?
No, there are other disputes that contentious probate lawyers can advise on.

This includes:

Trust Disputes:
Trust disputes can be similar to Executor disputes. There may be:

Concerns that the Trustees are not acting properly or are not managing the Trust how they should.
Questions about the mental ability of the person who set up the Trust to give instructions (i.e., capacity issues similar to those mentioned above).
Concerns that the Trust does not actually reflect the wishes of the person who created it or
The Trust document in unclear.
We can act for either Trustee of Beneficiary.

Disputes with attorneys appointed under a Lasting Power of Attorney (“LPA”).
LPA’s allow you to appoint someone to manage your finances and/ or to make health and welfare decisions when you are no longer able to do so. Commonly, people choose to appoint trusted family members, such as their children, as attorneys. There are a number of rules and obligations attorneys should follow which the Office of the Public Guardian (“OPG”) oversees.

Unfortunately, sometimes there are concerns about how the attorney is behaving i.e. there may be concerns about how an attorney of a property and finances LPA is dealing with the person’s finances. Commonly, attorneys wrongly use funds for their own benefit instead of for the benefit of the person who appointed them.

We can assist with advising on attorney on their duties or advise on reporting concerns to the OPG if necessary.

Acting for Deputies.
A deputy can be appointed by the Court when an attorney is removed. If the attorney has been removed for misappropriating funds belonging to the person they were acting as attorney for, the Court may give the deputy permission to take civil action against the attorney to recover those funds.

Contentious probate lawyers advise on an array of disputes in complex legal areas. Dealing with probate and the Estate of a loved one can be a difficult time, particularly if there are concerns about a Will or disagreements about the Estate.

Nothing in this article should be taken as giving specific legal advice.

If you would like advice on the matters discussed in this article, please contact the team on 0800 84 94 101

In my last blog I provided an overview on claims for negligence against professionals, I mentioned that time limits may mean that you should not delay. In this blog I provide more details.

If you are considering bringing a negligence claim against a professional (such as a solicitor, barrister, an accountant, surveyor, or architect), any claim must be made within a certain time frame. This is called the limitation period. If you make a claim outside this time frame, then your claim may be statute-barred, and you will not be able to make claim. Corresponding with the professional will not stop time limits and you must lodge a claim within a relevant court.

Key time limits to make your claim
There are, in general, two time limits on claims against professionals:

You usually have six years from the date of the breach of your contract by your professional within which to bring a claim or six years from actual damage (usually losses such as having an asset which is worth less than expected) and resulting from the negligent act by your professional. These periods are known as the ‘Primary Limitation’ period.
In some instances, it is not apparent that you have suffered financial loss at the hands of a negligent professional within the six-year period. If this is the case, then a ‘Secondary Limitation’ period will apply and, in this case, the relevant time limit period is three years from the date of knowledge of facts which might give rise to a claim. This period is known as the ‘Secondary Limitation’ period.
There is a long stop date of fifteen years within which claims must be brought.

To give an example about an actual case from our file:
Two parties bought a house in June 2004, and their relationship ended in 2019. There was a dispute between them about their respective share of the house. Their solicitors failed to advise them concerning their joint ownership and to draw up a formal document recording the share of the house they had verbally agreed in 2004. The primary limitation period for the claim by one of the parties, who had instructed us, expired in 2010.

However, our client did not know about the claim until just before we were instructed in March 2019. Our client could use the secondary limitation period as our client only became aware of his potential claim against his conveyancing solicitors in March 2019. The 15 year long stop period did not expire until June 2019 and we advised him to lodge a claim pending negotiations with his former conveyance solicitors. We successfully settled the claim as it was brought within the statutory time limit. If the claim had been issued post June 2019, our client would not have been able to bring a claim against his former conveyance solicitors.

It can be difficult or complex in some cases to work out when the six year or three period starts running, and so if you think you have a claim against a professional, it is important to seek legal advice as quickly as possible, As an example, on the three year time limit, the court will work what knowledge you had about the issues in your claim and this may well be different from when you think you knew that you had a right to bring a claim.

Family life is everything to all of us and when a part of that breaks down, whether it be a marriage breakdown or separation from a partner or problems regarding arrangements for children; we are here to help.

We understand that making the initial contact with a law firm at what is already an emotional time can be a difficult decision to make. We want to ensure that from the very start, you feel well informed about the process and what steps we take to give you the best advice possible from the outset up to the conclusion of your matter.

Where are we?
Our Team is based throughout Sussex. We have offices in Eastbourne, Seaford, Brighton, Lewes, East Grinstead, Peacehaven, Storrington and Crawley.

Due to the Pandemic face to face appointments have been replaced with telephone or zoom appointments over the past 18 months. However, face-to-face appointments will be available, if preferred. Some people will prefer online meetings as it is often easier to fit around work or childcare and we are still very much open to facilitating meetings in this way.

How can you contact us?
Email – enquiries@mayowynnebaxter.co.uk

Webchat – Pop’s up when you are on the website.

Telephone – 0800 84 94 101

All initial enquiries are passed to one of our family law paralegals who have an understanding of family law and who will be able to take the relevant details from you and arrange an appointment at a date and time to suit you.

Costs
One of the first questions new clients ask is how much the process will cost. We offer an initial fixed fee appointment at a fee of £250 plus VAT. The cost of the initial appointment will be confirmed to you by the paralegal when arranging the appointment with you. During the appointment the legal advisor will be able to provide you with a further estimate of costs based on the circumstances of your case. A guide to how much particular cases tend to cost from start to finish are published on our website.

Family Fees

The benefits of a Fixed Fee Appointment
Our fixed fee appointment is designed to give you a full overview in relation to all your options and ensure that you come away with the answers to any questions you may have about your particular circumstances. You will receive advice on where you stand legally to enable you to make an informed decision on how you wish to proceed. The appointment is likely to last 1 – 1.5 hours. We understand that after this appointment you may need time to go away and think about your options, or you may feel ready to instruct us so that we can help you resolve your matter.

We understand many people are reluctant to provide detailed information to a non-solicitor before their appointment, however, it often helps the solicitor to gain an understanding of each case and ensures more time is spent discussing the relevant issues and options during your meeting. We will also send you a pre-appointment questionnaire which you can choose to fill in if you want to provide some additional information.

Information we need from you:
To enable an appointment to take place our Paralegals require the following:

Contact details of all parties
Names
Addresses
Dates of birth of both parties
All information provided to us is completely confidential. We will need to do a conflict check to ensure there is no conflict, i.e. we have already spoken to your spouse/partner.

Background Information
Our paralegals will ask you for some background information in relation to the advice sought. It is helpful to provide as much information as possible at this stage as the information provided will enable the advice you receive to be tailored to your specific needs.

Setting up an appointment
The paralegals will arrange an appointment for you at a date and time to suit you. Appointments can take place over the telephone, via Zoom and if appropriate, face to face.

A confidential file will be opened for you and our Database Team will email you a welcome letter which sets out our terms and conditions together with our anti money laundering identification policy.

All clients are required to provide us with identification documents which must be dated within three months, together with confirmation of instruction before any appointment can take place. This will be emailed to you prior to your appointment.

Once a file is opened an email will be sent confirming the date and time of appointment together with details of how to make payment prior to the appointment.

If you have been recommended to one of our team, please let us know at the outset and every effort will be made to arrange an appointment with that specific legal advisor.

We do not underestimate how difficult making that initial contact with us is, whether it be in relation to seeking advice in relation to divorce, separation from a partner or difficulties in relation to arrangements for children following a breakdown in a relationship. All our paralegals have vast experience in identifying the issues you may have and will show empathy and understanding at the outset to ensure the process is as seamless as possible.

We want to ensure we look after all our potential clients as best we can and to ensure we are doing that; we commit ourselves to being ‘mystery shopped’. This provides us with the feedback we need to ensure we always offer a high level of service, whether an existing client or not.

Income tax to date of death
Administering an estate of someone who has died has a number of different aspects to it that need to be dealt with by the executor or personal representative of the estate. One of these is reporting the death to HM Revenue and Customs and checking the income tax position of that person from 6 April to the date of death and, depending on circumstances a year or maybe more before death.

‘Tell Us Once’
A good place to begin is to use the ‘Tell Us Once’ service using the unique reference number that will be provided to you when you register the death. This is a service which means that you can notify a death to most government organisations in one telephone call or through the online system. You have 28 days from the date of registration of the death to complete this application. This system will notify HM Revenue and Customs who will then write to you as personal representative. If you don’t use the ‘Tell us Once’ service, you can contact the HM Revenue and Customs bereavement helpline by phone or write to them.

If the deceased completed Self-Assessment tax returns
If the person who had died was completing Self-Assessment tax returns, then HM Revenue and Customs will probably issue a tax return to be completed from 6 April to the date of death. If there are any outstanding tax returns from previous years, they will let you know that you need to complete these as well. If they were not completing tax returns HM Revenue and Customs will calculate any tax due to or from the estate for you. When you get these calculations, it is really important that you look at them carefully to check that all the income that you are expecting is on the calculation.

Many estates where tax has been deducted from pay or pensions under PAYE will be due an income tax repayment to date of death, which is a good incentive to check the tax position carefully.

If you need any advice, please call us on 0800 84 94 101

It’s the most wonderful time of the year… unless you are a parent of a child where co-parenting proves difficult. Christmas can present all sorts of problems for parents who are unable to co-parent effectively. Christmas tends to be about spending time with close loved ones, friends and family and having to share the children during this time will inevitably mean spending less time with them and having to reach difficult compromises between each other.

What can you do to make the process of co-parenting at Christmas easier?
It often helps for separated parents to try and agree the arrangements for the Christmas period well in advance of the holidays. A common arrangement between separated families is for the children to spend Christmas Eve and some of Christmas Day with one parent, with the rest of Christmas Day and Boxing Day spent with the other. This can then alternate on a yearly basis. That arrangement will not work for everyone as it will largely be dependent on location and family traditions, but it is a starting point to build upon. If distance is an issue and it is not possible to share Christmas Eve, Christmas Day and Boxing Day between you, if you are the parent who is not spending Christmas itself with the children, maybe you could consider arranging a ‘fake Christmas’, where you get to do all the traditional festive things you would like to do with your family, just on a different day. Both parents can then enjoy the full festive experience and the children will get to celebrate twice.

How can you make it easier for your children at Christmas?
Conflict can also cause parents to try to outdo each other in terms of the experience itself and regarding buying presents. Although it can be tempting to spoil the children and show them that they can have a better time with you, this can sometimes lead to children feeling torn and may put them under additional stress if they feel they need to hide things from the other parent. The children’s wishes and feelings should be the primary focus when deciding how to manage the festive period and how it will be celebrated.

Whatever you decide, communication is key. If you are unable to have face to face discussions with the other parent, you could consider asking a family member or friend to facilitate discussions between you or you could attempt mediation as a form of alternative dispute resolution. There are also various online Apps you could use to try and figure out an agreement. Both parents will need to keep an open mind when discussing arrangements for the children and you should both be prepared to compromise to reach an agreement that is in the best interests of the children.

What can you do if you can’t reach an agreement?
Hopefully you are able to agree arrangements at Christmas by yourselves. However, for anyone who is not able to reach agreement or finds this year difficult to manage and wishes to ensure the same pattern is not repeated over years to come, one of our specialist family lawyers in our Family Team will be able to advise and assist you. We also have resolution accredited family lawyers in our team who can offer family mediation.

To find out more or to discuss your individual circumstances in more detail, contact us today on 0800 84 94 101 or email enquiries@mayowynnebaxter.co.uk.

Appointments are available in person at one of our offices, by telephone or via Zoom if preferred.

In all civil proceedings, the Court strictly requires the claimant to be truthful in the information they provide and to conduct their claim honestly. The claimant is also expected to not exaggerate any part of their claim.

This means that when you provide your solicitors with any information relating to your claim, you must ensure that it is accurate. This includes, for example, information you provide relating to the nature of your injury, the losses you have suffered, the people involved and so on.

If a defendant can successfully establish that you have not been honest, the Court can hold that you have been ‘fundamentally dishonest’.

Even if you have been honest in most aspects of your claim, if you have been dishonest in one area there is a risk that your whole claim could be dismissed.

Defendants may in some cases carry out video surveillance and seek to exploit any discrepancy between the video evidence and a claimant’s statement to support an allegation of fundamental dishonesty. Likewise, defendants may seek to exploit any discrepancy between a claimant’s social media profile and their witness statement. It is even possible for the data contained on a claimant’s ‘Fitbit’ or other personal tracking device to provide evidence that the claimant has exaggerated the extent of their injuries.

What happens if a claimant is found to be Fundamentally Dishonest?
The consequences for a claimant who is found to be fundamentally dishonest can be severe and it is an important consideration to make throughout the entirety of a claim.

Ultimately, a finding of fundamental dishonesty can result in your claim being struck out and you being ordered to pay the other side’s costs as well as your own. This can be devastating, especially if you were likely to win your case and you required the compensation for your future.

Normally, claimants in personal injury/clinical negligence cases benefit from a concept known as “Qualified One-Way Costs Shifting” (“QOCS”). The basic rule is that the claimant does not have to pay the defendant’s costs if they lose their case. However, the finding of fundamental dishonesty is an exception to this rule, meaning that the claimant may have to pay the defendant’s costs and risk having their claim struck out.

Where a defendant succeeds with a challenge to the QOCS rule, the claimant can lose all their compensation.

What difference does it make if I win/lose my case?
If you win or lose your case, and the defendant has successfully established fundamental dishonesty, the following can occur:

If you lose your case:
Under the Civil Procedure Rules, you will lose the protection of QOCS as outlined above. This means that you will have to pay your opponent’s costs, as well as your own costs.

If you win your case:
You will have to pay your opponent’s costs out of the compensation that you have been awarded. This means that if the defendant’s costs exceed the value of your compensation, you will receive nothing and will have to pay the difference.

The case of Iddon v Warner [2021]
The Claimant brought a claim against her GP for a missed diagnosis of breast cancer resulting in a mastectomy and axillary dissection, which would otherwise have been unnecessary. She claimed that these treatments had left her with incapacitating chronic pain.

She alleged that she was significantly disabled, such as to require extensive care for the rest of her life and that she had been a keen sportswoman prior to her treatment but could now no longer undertake the running and swimming she used to.

The Defendant filed a witness statement from an intelligence analysist, who had completed internet searches and surveillance which had revealed that the Claimant had participated in a number of sporting events, ranging from open water swimming events and 10km running races. This was clearly in glaring contrast to the picture portrayed by the Claimant in her evidence.

Having been caught out, the Claimant admitted that her witness statement had contained a number of untruths and that she had recruited her husband and friend in supporting her dishonest account. Furthermore, the Claimant accepted that she had participated in a number of sporting events.

The Judge concluded that the Claimant had not suffered chronic pain and that she had trained for and performed in various sporting events between 2017 and 2018. In his opinion, she had deliberately taken steps to mislead the Defendant and the Court about the extent of her injuries so as to inflate the value of her claim from approximately £70,000 to over £900,000.

As a consequence, the Claimant was found to be fundamentally dishonest, and the claim was dismissed. The Claimant had been in receipt of a substantial interim payment which she may have to repay.

Given the above, it is very important that a claimant does not attempt to exaggerate their claim or be dishonest in any way.

If you think that you might have a claim for medical negligence, please contact our team and we will be pleased to help.

The topic of Leasehold Reform has been hot in the press and media for quite some time now, whether it is to do with extortionate doubling ground rents, developer’s charging large sums of money for the owners of leasehold houses to buy their freehold, or cladding that does not meet fire safety regulations, for the last two years we seem to have been gaining some momentum with regard to potential reforms; has the Government finally listened?

Leasehold Reform 2020
In 2020 the Law Commission published three final reports on Leasehold Reform. The reports addressed buying your freehold or extending your lease, including the options to reduce the price payable and exercising the right to manage. The Law Commission was also tasked with considering how to reinvigorate commonhold tenure, which was introduced by the Commonhold and Leasehold Reform Act 2002.

In January of this year, the Government announced that legislation would be introduced, in this parliamentary session, tackling some of the areas in which reform has been recommended.

Will the Leasehold Reform help me?
One of the most common questions now posed to the Enfranchisement Team here at Mayo Wynne Baxter is ‘will the reforms help me, and, if so, how?’.

The proposed reforms can be summarised as follows:

A right to a new 990-year lease for owners of flats or houses
The reduction of the ground rent to nil
The removal of marriage value from the amount payable to the freeholder
The creation of a simple Government backed lease extension price calculator
Changes to Ground rents
The Government has only, so far, tackled one of the above four items: ground rents.

Unfortunately, high/onerous/doubling ground rents are causing a number of issues in the leasehold market. We are faced with mortgage lenders that refuse to lend on leasehold properties where the ground rent doubles every 5, 10 or 15 years throughout the term of a Lease. It is the stance of mortgage lenders that seems to be driving the response from buyers, and in the market in general. A buyer will not take the risk of purchasing a property that they cannot get a mortgage for, either now, or at a later date. In addition, even if the ground rent in a Lease doubles less frequently; say every 20, 25 or 33 years, buyers are still reluctant to proceed AND sellers are then faced with the prospect of spending, in some instances, large sums of money to remove the doubling ground rent. High yearly ground rents also pose an additional risk; that is if the ground rent goes over £250 per year (£1000 a year in London), then the Lease is classed as an Assured Shorthold Tenancy and the Landlord has a mandatory ground for possession if you are in arrears.

The ‘ground rent crisis’ has to be tackled, and the Government has attempted to do so; draft legislation has been published and is currently being considered.

Where do these changes apply?
The draft Leasehold Reform (Ground Rent) Bill that has been produced will apply to new long leasehold residential properties. It will not apply to current Leases, or retrospectively. Long leasehold means a Lease of 21 years or more. The only ground rent that a freeholder (Landlord) can charge in a long Lease cannot be for more than one peppercorn per year. The draft Bill also bans freeholders from charging administration fees for collecting a peppercorn rent. Freeholders that charge more than a peppercorn also face being fined up to £5000. The draft Bill will apply in England and Wales.

When are changes coming?
The draft Bill is currently on its 1st reading with the House of Commons, having completed five stages with the House of Lords (1st reading, 2nd reading, committee stage, report stage and 3rd reading). There are also five stages to go through the House of Commons before amendments are considered and made (if agreed) and the Bill receives Royal Assent.

An amendment has been requested to the draft Bill, aiming to ensure that the Government does introduce further legislation, at a later date, which removes ground rent for all leaseholders. It is too soon to know if this amendment will be accepted.

Who will these changes help?
In short, if you already have a high yearly or doubling ground rent, the draft Bill will not help you. In addition, if you are looking to purchase a new leasehold property, high or doubling ground rents can be imposed if and until the draft Bill receives Royal Assent. The draft Bill in its current format could also be amended. We will have to wait a few more months before we know what the final Bill will look like.

We also still have a long way to go before Leasehold Reform has a meaningful impact on existing leaseholders.

Charlotte Clarke, Associate Solicitor